Access to Safe and Legal Abortion- a Human Right?: A study of the protection for access to Safe and Legal abortion within Public International Law

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Access to Safe and Legal Abortion- a Human Right?

A study of the protection for access to Safe and Legal abortion within Public International Law

Cornelia Frank

Faculty of Law

Graduate thesis 30 HE credits Subject: Public International Law Spring term 2020

Supervisor: Jarna Petman

Swedish title: Tillgång till säker och laglig abort - en mänsklig rättighet? En studie av folkrättens skydd för tillgången till säker och laglig abort.

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Abortion is a highly emotional subject and one that excites deeply held opinions. However, equitable access to safe abortion services is first and foremost a human right. Where abortion is safe and legal, no one is forced to have one. Where abortion is illegal and unsafe, women are forced to carry unwanted pregnancies to term or suffer serious health consequences and even death.¹

1 Human Rights Watch, Women’s Human Rights: Abortion, 12 November 2008,

<https://web.archive.org/web/20081112153841/http://www.hrw.org/women/abortion.html>, checked 20 May 2020.

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Abstract

Abortion is a controversial issue. It is subject of heated debates stemming from morality and ethics. Abortion is also, however, a question of rights. Access to abortion weighs the rights of the foetus against the rights of the mother. Women being denied access to safe and legal abortion due to criminalisation and restrictive abortion laws, is also a matter of human rights. Women die every year as the result of unsafe abortion methods.

This thesis focuses on access to safe and legal abortion, and examines if and how public international law protects women’s access to abortion. It addresses the topic of reproductive rights and health, and whether this set of rights constitutes any protection for access to safe and legal abortion. Human rights that are actualised in relation to abortion include for example the right to life, right to privacy and right to health. Relevant provisions in CEDAW, ICCPR and ICESCR are analysed, together with general comments and reports issued by the treaty monitoring bodies of the UN.

The second part of the thesis focuses on access to safe and legal abortion under the ECHR and examines relevant case-law from ECtHR on the topic. In addition to the legal dogmatic method, a feminist legal theory is used to critically evaluate whether the current protection of access to safe and legal abortion is sufficient from a women’s rights perspective.

The author concludes that public international law does not offer any direct protection of access to safe and legal abortion. Instead, access to safe and legal abortion can be protected indirectly by other human rights. Restrictive abortion laws that results in risking the health and life of the mother can violate women’s human rights. Case-law from the ECtHR shows that European states are under a positive obligation to provide an effective access to abortion under the right to privacy, if the national law guarantees such a right. The result from the discussion based on feminist legal theory shows that public international law fails to recognise the abortion issue as a question of gender equality and discrimination against women.

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Abbreviations

CAT CEDAW

CEDAW Committee CESCR

ECHR ECtHR HR Committee IACHR ICCPR ICESCR ICJ ICJ Statute UDHR UN U.S.

WHO

Committee Against Torture

Convention on the Elimination of Discrimination Committee on the Elimination of Discrimination Against Women

Committee on Economic, Social and Cultural Rights

European Convention for the Protection of Human Rights and Fundamental Freedoms

European Court of Human Rights Human Rights Committee

Inter-American Commission on Human Rights International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cul- tural Rights

International Commission of Jurists

Statute of the International Court of Justice Universal Declaration of Human Rights United Nations

United States of America World Health Organization

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Table of Content

Abstract ... 3

Abbreviations ... 5

1 Introduction ... 9

1.1 Introductory remarks ... 9

1.2 Purpose ... 10

1.3 Research questions ... 10

1.4 Delimitations ... 11

1.5 Method and material ... 11

1.6 Definitions ... 14

1.7 Outline ... 14

2 Access to safe and legal abortion in the world today ... 17

2.1 Global statistics on abortion ... 17

2.2 Legality of abortion worldwide ... 18

2.3 Legality of abortion in Europe ... 18

3 Reproductive rights ... 19

3.1 Reproductive rights ... 19

3.1.1 Reproductive health ... 20

3.1.2 Abortion as a part of reproductive rights and health? ... 21

3.1.3 Concluding remarks ... 22

4 Abortion in public international law ... 23

4.1 Abortion in public international law ... 23

4.2 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 24 4.2.1 Restrictive abortion laws as discrimination against women ... 24

4.2.2 The right to family planning ... 26

4.2.3 Abortion as a part of the right to family planning? ... 26

4.2.4 Restrictive abortion laws as a violation of CEDAW ... 28

4.3 Abortion and the right to health ... 29

4.4 International Covenant on Civil and Political Rights (ICCPR) ... 31

4.4.1 The right to life ... 32

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4.4.2 Restrictive abortion laws as a violation of ICCPR ... 34

5 The European Convention on Human Rights and the access to safe and legal abortion 36 5.1 The right to life ... 36

5.1.1 The right to life of the unborn child ... 37

5.1.2 The right to life of the mother ... 38

5.2 The prohibition of torture ... 38

5.3 The right to privacy ... 39

5.3.1 Brüggemann and Scheuten v. the FRG ... 40

5.3.2 Tysiąc v. Poland ... 41

5.3.3 A., B. and C. v. Ireland ... 42

5.3.4 R.R. v. Poland ... 43

5.3.5 P. and S. v. Poland ... 44

5.4 European jurisprudence on access to safe and legal abortion- an analysis ... 45

5.4.1 No right to access abortion under the Convention ... 46

5.4.2 The right to life vs. access to abortion ... 48

5.4.3 Abortion within “the scope” of Article 8 ... 50

5.4.4 A positive obligation to provide effective access to abortion under Article 8 ... 51

5.4.1 Margin of appreciation ... 51

5.5 Concluding remarks ... 53

6 Discussion ... 54

6.1 Abortion as a right ... 54

6.2 Access to abortion- a matter of equality and anti-discrimination? ... 56

6.2.1 Discrimination ... 56

6.2.2 Abortion as a right of equality instead of privacy ... 57

6.3 Abortion as a reproductive right ... 59

6.4 Universalism vs. Cultural relativism ... 60

6.5 Access to abortion- an issue suitable for public international law? ... 62

7 Conclusions and final remarks ... 63

7.1 Conclusions ... 63

7.2 Final remarks ... 64

References ... 67

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1 Introduction

1.1 Introductory remarks

From my internship last semester at the UN-Policy Department at the Swedish Ministry for Foreign Affairs, I gained insight into how Sexual and Reproductive Health and Rights is one of the most debated issues in international politics. Ac- cess to abortion is considered to be the most controversial topic within this area, where aspects of ethics, religion and political opinion influences the debate.

However, the question of abortion is also a question about rights. In aspects of human rights law, the issue of abortion has historically been disputed.² It’s an issue where the rights of the mother are weighed against the rights of the foetus.

It’s a about the enjoyment of rights, but also the denial of rights in cases where women are being denied access to safe and legal abortion. With this thesis, I want to analyse how abortion relates to human rights.

In some parts of the world can abortion be accessed upon request, in other parts of the world, the woman seeking it can face a criminal penalty. Globally, there are recent examples of countries legalising abortion. Examples that could be mentioned are Australia, where New South Wales as the last state removed abortion from their criminal code last year, and the referendum in Ireland voting in favour of legalising abortion.³However, there are examples of an opposite trend where conservative opinions and anti-abortion arguments are being debated.⁴

2See for example Shah, H. Iqbal, Åhman, Elisabeth, Ortayli, Nuriye, Access to Safe Abortion: Progress and Challenges since the 1994 International Conference on Population and Development (ICPD), 2014, p. 3–4.

3 See the Abortion Law Reform Act 2019 (NSW), which decriminalized abortion in New South Wales on September 26, 2019. Before the reform, the penalty for an illegal abortion could amount to 10 years in prison according to the Crimes Act 1900 (NSW). Regarding the referendum on Ireland, see the Thirty-sixth Amendment of the Constitution of Ireland.

4 See for example Kenny, Chaterine, Abortion — A Reproductive Right, in Widdows, H., Emaldi Cirión, A., Idiakes Alkorta, I. (ed.) Women’s Reproductive Rights. Women’s Rights in Europe Se- ries, Palgrave Macmillan, London, 2006 p. 17.

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Of all pregnancies in the world each year, 25% result in induced abortion. A lot of the abortions carried out are considered unsafe due to restrictive laws making it impossible to reach minimum medical standards for the procedure.⁵ Every year, around 25 million unsafe abortions are estimated to take place. 47 000 women die each year because of the lack of access to safe and legal abortions according to the World Health Organization.⁶ Statistics show that the legal status of abortions does not affect the number of abortions carried out. Women will still seek abortions, regardless of how the law regulates the practice.⁷

There is a clear connection between the lack of access to safe and legal abortions and the enjoyment of human rights, due to the connection to maternal mortality and morbidity. Human Rights that are affected are for example the right to health, the right to privacy, and the right to life. This thesis will analyse how access to safe and legal protection is protected by public international law.

1.2 Purpose

The purpose of this thesis is to analyse if public international law offers any protection of women’s access to safe and legal abortion. This study will examine whether access to safe and legal abortion can be seen as a human right. Further- more, this thesis will add a critical feminist perspective on how access to safe and legal abortion is protected in public international law.

1.3 Research questions

The main research question of the thesis is: How is access to safe and legal abortion protected under public international law? The following sub-questions will furthermore be analysed: Could access to safe and legal abortion be included in the protection for reproductive rights? Can restrictive abortion laws violate human rights? As the leading human rights mechanism internationally, how has the European Court of Human Rights handled the question of access to safe and legal abortion under the European Convention on Human Rights? From a critical perspective based on international feminist legal theory, is the protection for access to safe and legal abortions within public international law sufficient?

5 WHO, Preventing unsafe abortions, Key fact, 26 June 2019, <https://www.who.int/news-room/fact- sheets/detail/preventing-unsafe-abortion>, checked 20 May 2020.

6 WHO, Unsafe abortion -Global and regional estimates of the incidence of unsafe abortion and associated mortality in 2008, 6th edition, 2011, p. 27, <https://apps.who.int/iris/bistream/han- dle/10665/44529/9789241501118_eng.pdf?sequen >, checked 20 May 2020.

7 Guttmacher Institute, Induced Abortion Worldwide, 2018, <https://www.guttmacher.org/fact- sheet/induced-abortion-worldwide>, checked 20 May 2020.

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1.4 Delimitations

The issue of abortion is a very complex issue with many perspectives. This thesis will address the issue of abortion with a focus on women’s access to safe and legal abortion within public international law. This thesis will not examine whether the practice of abortion is right or wrong in an ethical or moral sense. Ethical and moral issues will however be addressed indirectly, since these values are closely connected with balancing of interests in relation to abortion and human rights.

Aspects of conscientious objection to abortion will not be discussed in the thesis.

1.5 Method and material

In order to study the right to abortion in the context of public international law, a legal dogmatic method will be used. There is no given definition of the meth- odology. However, this method is traditionally used for describing and systemis- ing the law.⁸ Through this method, the law as it is will be identified.⁹ A legal positive approach will be used in the thesis. The formally recognised sources of public international law, as listed in Article 38(1) of the Statute of the Interna- tional Court of Justice (ICJ Statute), serve as the basis for the analysis in order to answer the research questions.¹⁰

In addition to this classical legal method, a critical feminist theory will be used in the essay. The question of abortion is closely linked to equality and gender.¹¹ Therefore, this theory is a suitable complement to the legal dogmatic method. A feminist approach to international law focus on how international law marginal- ises women by failing to take their lives or experiences into account.¹² Unlike other theories, critical legal theories argue that legal analysis cannot be separate from the economic, historical and cultural context of a society. The feminist approach has aspects of this critical viewpoint but is specifically focused on how the legal system creates an unequal position for women.¹³ With a feminist theory,

8 Jareborg, Nils, Rättsdogmatik som vetenskap, SvJT 2004 s. 4.

9 Korling, Fredrik, Zamboni, Mauro (ed.), Juridisk metodlära, 2 u., Studentlitteratur, Lund, 2018, s.

21–23.

10 United Nations, Statute of the International Court of Justice, 18 April 1946. For an explanation of the legal positive approach, see Hervey, Tamara, Cryer, Robert, Sokhi-Bulley, Bal, Bohm, Ali, Research Methodologies in EU and International Law, Hart Publishing, Oxford, 2011, p. 37-39.

11 See for example Kirilova Eriksson, Maja, Reproductive Freedom: In the Context of International Human Rights and Humanitarian Law, Kluwer Law International, The Hague, 2000, p. 303. (Cited as Kirilova Eriksson, 2000)

12 Chinkin, Christine,Feminism, Approach to International Law, in Wolfrum, Rüdiger (ed.), Max Planck Encyclopedia of Public International Law, October 2010.

13 Charlesworth, Hilary, Chinkin, Christine, Wright, Shelley, Feminist Approaches to International Law, American Journal of International Law, Volume 85, Issue 4, 1991, 613, p. 613.

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it’s possible to challenge the credibility and universality of human rights law because of the failure to recognize women’s reality.¹⁴

Within feminist legal theory, there are different orientations, for example, lib- eral feminism and radical feminism. This thesis has not made a distinction between such orientations. Instead, focus is on the subject of abortion, and relevant perspectives from feminist legal theory in general has been used to get a critical perspective on the subject.

Charlesworth, Chinkin and Wright argue that international law traditionally doesn’t recognise aspects of gender because issues such as state sovereignty and use of force appear to be “gender-free”. The international law system is, however, a gendered system. According to the authors, one must look behind the aspects of states and instead analyse how the rules impact women within the states.¹⁵ By challenging the complete nature and the context of international law, the feminist legal theory could create a progressive change.¹⁶The feminist legal theory applies to the subject of the thesis in many ways. The first example is a criticism of how human rights are established in international law. Feminist scholars argue that human rights are considered to be a set of “male rights”.¹⁷ Human rights are male privilege and fail to acknowledge the interests of women. This has led to a failure of recognising and protecting rights that are relevant to women. According to Anne Gallagher, a lack of reproductive choice is one of the issues that international human rights have has failed to recognise.¹⁸

Second, another major feminist critique that could be mentioned in regards to access to safe and legal abortion, is the distinction between the public vs. the private sphere in international law.¹⁹ This critique is based on the argument that international law privileges the public sphere, and therefore fails to recognise life in private sphere.²⁰ International law is by nature state-based and focused on the public sphere. However, human rights law is an exception due to state responsi- bility for individual rights. The human rights system is focused on attacks on individuals by state action, rather than oppression of individuals in private

14 Cook, Rebecca J, International protection of women's reproductive rights. New York University Journal of International Law and Politics, vol. 24, no. 2, 645, 672.

15 Charlesworth, Hilary, Chinkin, Christine, Wright, Shelley, Feminist Approaches to International Law, American Journal of International Law, vol. 85, no. 4, 1991, 613, p. 614.

16 Ibid, p. 615.

17 This means that rights are ‘defined by the criterion of what men fear will happen to them’. Se e.g. Eisler, Riane, Human Rights: Toward an Integrated Theory for Action, Human Rights Quarterly, vol.

9, No. 3, 1987, p. 287, and Bunch, Charlotte, Women’s Rights as Human Rights: Toward a Re-Vision of Human Rights, Human Rights Quarterly, vol. 12, no. 4, 1990, p. 486.

18 Gallagher, Anne, Ending the Marginalization: Strategies for Incorporating Women into the United Nations Human Rights System, Human Rights Quarterly, vol. 19, no. 2 , 1997, 283, p. 290.

19 Edwards, Alice, Violence against Women under International Human Rights Law, Cambridge University Press, Cambridge, 2010, p. 64. (Cited as Edwards, 2010)

20 Naffine, Ngaire, Sexing the Subject (of Law), in M. Thornton (ed.), Public and Private: Feminist Legal Debates, Oxford University Press, Melbourne, 1995, p. 20.

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settings. ²¹ Violence against women has been excluded from the human rights agenda, since oppression of women has not been seen as something political.²² Therefore, there is a lack of rights protecting women from risks in the private environment.²³

The material used in the thesis consists of both primary and secondary sources of international law, as listed in Article 38(1) of the Statute of the International Court of Justice (ICJ Statute).²⁴ Relevant provisions from Convention on the Elimination of Discrimination (CEDAW), the International Covenant on Eco- nomic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) are analysed in order to answer the research questions.²⁵ Furthermore, the European Convention for the Protection of Hu- man Rights and Fundamental Freedoms (ECHR) are used for analysing access to safe and legal abortion within the European context.²⁶ As secondary sources, judicial decisions from the UN Committee on the Elimination of Discrimination of Women (CEDAW Committee) and the European Court of Human Rights (ECtHR) are used for interpretations of human rights treaties. General comments and recommendations from the treaty monitoring bodies are used to interpret the treaties.²⁷ The material from the international conferences Cairo Pro- gram of Action and the Beijing Declaration and Platform for Action are important documents for the topic of reproductive rights.²⁸ These sources of soft law are therefore be used in order to address the topic in an international context.

In addition, relevant doctrinal works are used to provide opinions and critical perspectives on the issue.

21 Edwards, 2010, p. 65.

22 Bunch, Charlotte, Transforming Human Rights from a Feminist Perspective, in Peters, Julie & Wolper, Andrea (ed.), Women’s Rights, Human Rights: International Feminist Perspectives, Routledge, New York, 1995, p. 14.

23 Chinkin, Christine,Feminism, Approach to International Law, in Wolfrum, Rüdiger (ed.), Max Planck Encyclopedia of Public International Law, October 2010, where abortion is mentioned.

24 United Nations, Statute of the International Court of Justice, 18 April 1946.

25 UN General Assembly, Convention on the Elimination of All Forms of Discrimination against Women, A/RES/34/180, 1979; UN General Assembly, International Covenant on Economic, Social and Cultural Rights, United Nations, Treaty Series, vol. 993, p. 3, 1966; UN General Assembly, International Cov- enant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171.

26 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950.

27 The treaty monitoring bodies are the committees of experts that monitors the implementation of the international human rights treaties. In this thesis, material from the CEDAW, the HR Com- mittee, and the CESCR are used.

28 UN Population Fund, Report of the International Conference on Population and Development, Cairo, 5–13 September 1994, 1995, A/CONF.171/13/Rev.1; United Nations, Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on Women, A/CONF.177/20, 1995.

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1.6 Definitions

Abortion is defined as a termination of a pregnancy. This thesis focuses only on induced abortion.

Therapeutic abortion is an induced abortion to save the health or life of the preg- nant woman.²⁹

Abortion on request or Abortion on demand means that a woman can terminate her pregnancy on request, without showing any evidence of a particular reason or justification.³⁰

Unsafe abortion is defined as the procedure of terminating an unwanted preg- nancy either by a person lacking the necessary skills, or in an environment lacking the minimum standard, or both.³¹

Safe and legal abortion is a definition commonly used by such actors as the UN and WHO when referring to how women should be able to access abortion. A safe abortion is the opposite of an unsafe abortion, meaning an abortion which is performed by a person with the necessary skills and in a safe environment. A legal abortion can be defined as a termination a pregnancy lawfully without any criminal sanctions.

Reproductive rights can be defined in various ways and there is not a commonly used definition used in public international law. As defined at the International Conference on Population and Development held in Cairo 1994 (ICPD), reproductive rights are about the right to decide freely when to have children, to attain a high standard of reproductive health, and to make decisions about reproduction free from discrimination.³²

Reproductive health can be defined well-being in all matters relating to the repro- ductive system, where access to health care and family planning is included.³³

1.7 Outline

This thesis is divided into seven chapters. Chapter two will give a short introduction on access to and legality of abortion worldwide. Chapter three will describe the concept of reproductive rights in international law. Chapter four will analyse how access to safe and legal abortion is protected within public international law.

29 Karolinska Institutet- Svenska MesH, Abortion Therapeutic,

<https://mesh.kib.ki.se/term/D000032/abortion-therapeutic> checked 20 May 2020.

30 WHO, Abortion Laws, A Survey of Current World Legislations, Geneva, 1971, p. 10.

<https://apps.who.int/iris/bitstream/handle/10665/41924/a53898_eng.pdf?sequence=1>, checked 20 May 2020.

31 WHO, The Prevention and management of unsafe abortion, Report of the technical working group, Geneva WHO/MSM/925, 1992, <https://apps.who.int/iris/bitstream/han- dle/10665/59705/WHO_MSM_92.5.pdf?sequence=1>, checked 20 May 2020.

32 UN Population Fund, Report of the International Conference on Population and Development, Cairo, 5–13 September 1994, 1995, A/CONF.171/13/Rev.1, para. 7(3).

33 ibid, para. 7(2).

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Chapter five will address how access to safe and legal abortion is protected by the European Convention on Human Rights and analyse case-law on the topic from the European Court of Human Rights. In chapter six, some of the findings from the previous chapters will be discussed from a critical perspective based on feminist legal theory. In chapter seven, the research questions will be answered, and the conclusions presented.

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2 Access to safe and legal abortion in the world today

2.1 Global statistics on abortion

In this chapter, a short overview of statistics and legality on abortion globally will be presented. According to statistics, 25% of all pregnancies in the world during 2010–2014 ended in abortions. An estimated total of 56 million induced abortions occurred worldwide each year during 2010-2014. Of these, 25 million of were estimated to be unsafe.³⁴ The majority of the abortion-related deaths or health issues can be prevented with safe and legal abortions and other measures such as contraceptives and education in reproductive rights.³⁵

There is a connection between legality and safety. Abortions are considered to be safer in countries with fewer restrictions. The number of abortions carried out in countries where abortions are highly restricted are similar to the number in countries where it’s more broadly legal. In countries where abortion is prohib- ited or allowed only in order to save the life of the mother, the abortion rate is 37 per 1000 women compared to 34 per 1000 women in countries that allow abortion without restrictions on women’s reasons.³⁶

34 Ganatra B, Gerdts C, Rossier C, Johnson Jr B R, Tuncalp Ö, Assifi A, Sedgh G, Singh S, Bankole A, Popinchalk A, Bearak J, Kang Z, Alkema L. Global, regional, and subregional classification of abortions by safety, 2010–14: estimates from a Bayesian hierarchical model, The Lancet, vol. 390, 2372, p. 2372, 2017.

35 Grimes, D. A, Benson, J, Singh, S, Romero, M, Ganatra, B, Okonofua, F. E, Shah, I. H, Unsafe abortion: the preventable pandemic, The Lancet Sexual and Reproductive Health Series, vol. 368, no.

9550, 2006, p. 1908.

36Singh S, Wulf, D., Hussain, R., Bankole, A., Sedgh, G., Abortion Worldwide 2017: Uneven Progress and Unequal Access, Guttmacher Institute, New York, 2018, p. 8.

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2.2 Legality of abortion worldwide

According to a report by the Guttmacher Institute, countries can be divided into six categories.³⁷ Category one prohibits abortion on any ground, and category six allows abortion without restrictions as to reasons. Categories five to two allow abortion on grounds such as physical and mental health and for socio-economic reasons. In the most restrictive category, we can find such countries as Malta, El Salvador, and Egypt. Of the number of women of reproductive age, 6 % lived in countries belonging to this category (2017). 37 % of women live in countries belonging to category six where abortion is available on request. Most women, therefore, live in countries where abortion is restricted but can be available for particular reasons. Worldwide, there is a trend towards amending laws and ex- panding the circumstances under which abortion is permitted. 33 countries ex- panded their circumstances between 2000 and 2017.³⁸ As noted in the report, however, there is often a gap between laws and what services women actually can obtain in practice.³⁹

2.3 Legality of abortion in Europe

In Europe, almost all countries allow abortion on request or on broad social grounds. 95 % of the women of reproductive age live in these countries. There are six states where abortion is not allowed on request or on social grounds.

These states are Andorra, Liechtenstein, Malta, Monaco, Poland, and San Ma- rino. Malta has a total ban on abortion.⁴⁰ In Poland, abortion is allowed when the mother’s life or health is at risk, in cases of a sexual assault and cases of foetal anomaly.⁴¹ In several European countries there are mandatory waiting periods and requirements for mandatory counselling which can affect the access to abortion in practice.⁴²

37 Singh S, Wulf, D., Hussain, R., Bankole, A., Sedgh, G., Abortion Worldwide 2017: Uneven Progress and Unequal Access, Guttmacher Institute, New York, 2018.

38 Ibid, p. 17.

39 Ibid, p. 14–16.

40 Malta, Chapter 9 of the Laws on Malta, Criminal Code, article 241.

41 Poland, 1993 Family Planning Act, Article 4 (a)(1)(2).

42 Center for Reproductive Rights, European Abortion Laws A Comparative Overview, 2019,

<https://reproductiverights.org/sites/default/files/documents/European%20abor- tion%20law%20a%20comparative%20review.pdf>, checked 20 May 2020.

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3 Reproductive rights

3.1 Reproductive rights

A suitable starting point for the issue of abortion in public international law is to analyse the field of reproductive rights. Women have historically been fighting for the recognition of their reproductive rights and freedoms as a part of the women’s rights movement.⁴³ The issue of reproductive rights is however rela- tively new within an international human rights context. The question of reproductive rights is closely linked with sexuality, gender, and issues of ethics and morality which makes it difficult to regulate internationally. Growing interest in the issue of reproductive rights is closely linked to an increased awareness of women’s rights, and alternative legal methods such as the feminist approach to international law.⁴⁴

There is no convention specifically regulating reproductive rights. Neither is there a given definition of the term “Reproductive Rights” in any of the international human rights conventions. The scope and the content of reproductive rights are therefore disputed between scholars, where there is a wider view on hand and a narrower view on the other. This chapter will give an overview of the meaning of reproductive rights and how the concept is referenced in international law.

The only international human rights instrument that recognises a right to reproductive health is the International Convention on the Protection and Promo- tion of the Rights and Dignity of Persons with Disabilities.⁴⁵ On a regional level, Article 14 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) expressly states that women’s reproductive rights should be considered as human rights.⁴⁶

In 1994, the International Conference on Population and Development (ICPD) took place in Cairo. 179 countries agreed on a Program of Action which

43 Mann, Jonathan, Gruskin, Sofia, Women's Health and Human Rights: Genesis of the Health and Human Rights Movement," Health and Human Rights, vol. 1, no. 4, 1995, 309, p. 309–312.

44 Gebhard, Julia, Trimiño Mora, Diana, Reproductive Rights, International Regulation, in Wolfrum, Rüdiger (ed.), Max Planck Encyclopedias of International Law, August 2013.

45 UN General Assembly, Convention on the Rights of Persons with Disabilities : resolution / adopted by the General Assembly, 24 January 2007, A/RES/61/106.

46 African Union, Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 2003.

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set out new goals and visions for development and individual well-being. This document is considered to be a very important milestone in the area of reproductive rights and health. According to the 1994 Program of Action, Reproduc- tive Rights builds on human rights that exist in international laws as well as in national laws and other human rights documents.

”[R]eproductive rights embrace certain human rights that are already recognized in national laws, international laws and international human rights documents and other consensus documents. These rights rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so, and the right to attain the highest standard of sexual and reproductive health. It also includes their right to make decisions concerning reproduction free of discrimination, coercion and violence, as expressed in human rights documents.”⁴⁷

This formulation is considered to be the broader view of how reproductive rights should be defined. In this view, where reproductive rights “embrace other rights”, twelve human rights could be actualised. Examples are the right to life, the right to health and the right to privacy. These human rights will be discussed further below. Scholars in favour of the narrower view on the other hand, argue that reproductive rights consist only of a recognition of reproductive choice. Ac- cording to the narrower view, the only binding reproductive right can be found in the right to family planning, Article 16(1) CEDAW.⁴⁸

Another important global document in the area of reproductive rights is the Beijing Declaration and Platform for Action. Article 94 in the document de- scribes reproductive health as the capacity to reproduce and the freedom to decide if, when, and how often to do so. This furthermore includes access to “safe, effective, affordable and acceptable” methods of family planning.⁴⁹

3.1.1 Reproductive health

Reproductive health is a concept within reproductive rights. The first mention of the term “reproductive health” can be found in the Cairo Program of Action from 1994. In chapter VII Paragraph 7(2), reproductive health is described as a:

“state of complete physical, mental and social well-being and not merely the ab- sence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes.”

47 UN Population Fund, Report of the International Conference on Population and Development, Cairo, 5–13 September 1994, A/CONF.171/13/Rev.1, 1995, para. 7(3).

48 UN General Assembly, Convention on the Elimination of All Forms of Discrimination against Women, A/RES/34/180, 1979.

49 United Nations, Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on Women, A/CONF.177/20, 1995, Article 94.

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This includes for example access to health care systems, family planning, counselling and education in reproductive health.⁵⁰

3.1.2 Abortion as a part of reproductive rights and health?

The Cairo conference is the first United Nations conference that refers to unsafe abortions as a public health concern. According to the document, all govern- ments, inter-governmental and non-governmental organisations should work for strengthening the commitment to women’s health. The consequences of unsafe abortions should be seen as a “major public health concern”, and countries should reduce the need for abortion through improved access to family planning.

Abortion should not, however, be seen as a method of family planning.⁵¹ This formulation indicates the common understanding of how abortion relates to family planning: abortion was not included in the term family planning. Rather, family planning was perceived as a method to prevent abortions.

Abortion was, according to the Cairo Conference, considered as a part of the right to health. Through this, the controversial question of the legal status of abortion didn’t have to be addressed. The preambular Paragraph 1(15) states that the Cairo Conference does not create any new international human rights. Ac- cordingly, the document states that access to abortion only can be regulated by national law. There is no mentioning of a “right” to obtain a safe and legal abortion in the outcome of the conference. Instead, the document states that “In circumstances where abortion is not against the law, such abortion should be safe.”⁵² This can be seen as a compromise, where the question of women’s au- tonomy and the right to choose abortion was left unresolved, and has been criticised in the doctrine.⁵³ According to Maja Kirilova Eriksson, the aim of the Cairo document was to promote safe abortion services to the ones in need of such services. Kirilova Eriksson holds that there was an intention by the drafters to remove the legal restrictions on abortion to ensure that all abortions taking place are safe.⁵⁴

In the Beijing Declaration and Platform for Action, unsafe abortions are recognised as a threat to women’s health and lives. However, the document does not identify access to safe and legal abortion as a way to prevent these deaths.

50 UN Population Fund, Report of the International Conference on Population and Development, Cairo, 5–13 September 1994, A/CONF.171/13/Rev.1, 1995, para. 7(2).

51 Ibid, para. 8(25).

52 Ibid, para. 8(25).

53 Berer, Marge, The Cairo “Compromise ”on Abortion and its Consequences for Making Abortion Safe and Legal, in Reichenbach, Laurie and Roseman, Mindy Jane (eds), Reproductive Health and Human Rights: The Way Forward, University of Pennsylvania Press, Pennsylvania, 2009, p. 153–155.

54 Kirilova Eriksson, 2000, p. 172.

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Rather, it recognises a right for women to choose methods of family planning as long as these methods are not against the law.⁵⁵

3.1.3 Concluding remarks

The Cairo Program of Action and the Beijing Declaration and Platform of Action are both very important for the development of women’s reproductive rights. A majority of states have signed the documents and therefore accepted the com- mitments and standards made in the area of reproductive health and rights.⁵⁶ The documents are often used to interpret international law and as a reference for legislative reforms. However, the consensus documents are non-binding.⁵⁷ To- gether with the lack of any mention of reproductive rights in international human rights treaties, it’s possible to conclude that the protection for reproductive rights in an international context does not exist. Reproductive rights can, however, consist of already existing human rights, as mentioned above. As shown in this section, a right to abortion was not originally included in the definitions of reproductive rights and health. Nevertheless, access to abortion is often mentioned in the same contexts as reproductive rights and argued to be a reproductive right.

The ideas behind reproductive rights are closely connected with arguments sup- porting women’s right to safe and legal abortion services, since they represent the ideas of women’s right to make choices about their reproduction free from discrimination. Even though reproductive rights are not legally codified, the ideas and expressions forming the concept of reproductive rights are crucial when addressing the topic of access to safe and legal abortion. Reproductive rights have been used in the interpretation and enforcement of international human rights treaties such as CEDAW and ICESCR, which will be addressed in the following chapter.⁵⁸

55 United Nations, Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on Women, A/CONF.177/20, 1995, Article 95.

56 Around 180 states agreed on the Cairo Program of Action, and 189 states agreed on the Beijing Declaration and Platform for Action. See. Kirilova Eriksson, 2000, p. 172.

57 Zampas, Christine, Gher, Jaime. M, Abortion as a Human Right: International and Regional Standards, Human Rights Law Review, vol. 8, no. 2, 2008, 249, p. 253. (Cited as Zampas and Gher, 2008)

58 Albertyn, Catherine, Abortion, Reproductive Rights and the Possibilities of Reproductive Justice in South African Courts, University of Oxford Human Rights Hub Journal vol. 1, 2019, 88, p. 92. (Cited as Albertyn, 2019)

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4 Abortion in public international law

4.1 Abortion in public international law

The legal status of abortion in public international law might not seem to be a complex issue since abortion is not mentioned in any of the international human rights conventions. A direct right to abortion can’t be found in any of the international human rights treaties. The exception on a regional level is the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, also called the Maputo Protocol, where a direct right to access abortion can be found in Article 14(2)(a) and (c).⁵⁹ The simple answer would, therefore, be that access to safe and legal abortion does not have any protection at all in public international law.⁶⁰ From this perspective, states have no obligation to provide any access to abortion and can regulate abortion without interference from the international community. This argument is used by nations with strict abortion laws as a rationale not to liberalise their laws, although human rights jurisprudence clearly calls for it based on women’s health arguments.⁶¹ The following sections will address access to safe and legal abortion in relation to human rights, and analyse how abortion is protected in public international law.

59African Union, Protocol to the African Charter on Human and People's Rights on the Rights of Women in Africa, 2003.

60 International treaties and customary international law are the primary sources of international law according to Article 38 of the ICJ Statute, and a right to abortion is included in neither of these sources of international law.

61 Patel, Gayatri H, Women and International Human Rights Law: Universal Periodic Review in Practice, Routledge, 1 ed, New York, 2019.

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4.2 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

The CEDAW Convention is the central human rights treaty regulating discrimination against women, sometimes referred to as the international bill of women’s rights.⁶² The Convention entered into force in 1981. The Convention requires that state parties eliminate all forms of discrimination against women and ensure that women can exercise and enjoy their human rights and fundamental freedoms in the same way as men.⁶³ Countries that have ratified the Convention are bound to implement the provisions into practice. The implementation of the Conven- tion is monitored by the CEDAW Committee.

CEDAW is the only human rights treaty that recognises women’s reproductive rights and is therefore of major importance to abortion rights.⁶⁴ The Con- vention directly addresses women’s reproductive role in relation to discrimination. The preamble states that “the role of women in procreation should not be a basis for discrimination". Furthermore, the Convention highlights how culture and tradition restrict the enjoyment of women’s human rights. The preamble states that ”a change in the traditional role of men as well as the role of women in society and the family is needed to achieve full equality of men and women".⁶⁵ CEDAW is the Convention that has been subject to more reservations than any other human rights treaty.⁶⁶ This indicates that women’s rights are a controversial issue.

4.2.1 Restrictive abortion laws as discrimination against women

The CEDAW Committee is a strong promoter for access to safe and legal abortion, and has stated that restrictive abortion laws can constitute discrimination against women. Article 12 CEDAW states that “States should take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.” General Recommen- dation No. 24 from 1999, states that:

62UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), resolution 34/180, 1979.

63 CEDAW, Article 2.

64 Shalev, Carmel, Rights to Sexual and Reproductive Health - the ICPD and the Convention on the Elimination of All Forms of Discrimination Against Women, Health and Human Rights, vol. 4, no. 2, 1998, 38, p.

40. (Cited as Shalev, 1998)

65 CEDAW, preamble, p. 1

66 United Nations, The Implementation of the Human Rights of women: Note by the Secretary General, E/CN.4/Sub/.2/19967/20, Geneva, 1996.

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“[i]t is discriminatory for a State party to refuse to provide legally for the perfor- mance of certain reproductive health services for women.⁶⁷

Criminalisation of medical procedures needed only by women, and punishment of women who undergo such procedures, should be seen as interference with women’s access to health care.⁶⁸ The comments do not explicitly mention abortion, but since access to abortion is a medical procedure which only women need, laws that criminalise abortion are by definition included in this formulation.⁶⁹ The CEDAW committee has furthermore declared that:

“Unsafe abortion is a leading cause of maternal mortality and morbidity. As such, States parties should legalise abortion at least in cases of rape, incest, threats to the life and/or health of the mother, or severe foetal impairment, as well as provide women with access to quality post-abortion care, especially in cases of complica- tions resulting from unsafe abortions. States parties should also remove punitive measures for women who undergo abortion.”⁷⁰

Furthermore, in its General Comment No. 35 regarding gender-based violence against women, the CEDAW Committee calls for a repeal on all laws criminalis- ing abortion. Criminalisation of abortion can amount to torture and cruel, de- grading and inhumane punishment.⁷¹

The Committee has in several cases criticised restrictive abortion laws, and concluded that restrictive abortion laws result in women having no choice but to undergo illegal and unsafe abortions.⁷² Restrictive abortion laws have been considered a violation of the rights to health and life.⁷³ In its reviews and recommendations to state parties, the committee has requested countries to change and remove provisions that punish women choosing to undergo abortion.⁷⁴

67 CEDAW, CEDAW General Recommendation No. 24: Article 12 of the Convention (Women and Health), 1999, A/54/38/Rev.1, 1999, para. 11.

68 Ibid, para. 14.

69 Cook, Rebecca J., Howard, Susannah, Accommodating Women's Differences under the

Women's Anti-Discrimination Convention, Emory Law Journal, vol. 56, no. 4, 2007, p. 1053. (Cited as Cook & Howard, 2007)

70 CEDAW Committee, Statement of the Committee on the Elimination of Discrimination against Women on sexual and reproductive health and rights: Beyond 2014 ICPD review, 57th Session, 2014.

71 CEDAW Committee, General Recommendation No.35 on gender-based violence against women, CEDAW/C/GC/35, 2017, para. 29(c) and 9(i).

72See for example CEDAW Committee’s Concluding Observations to Chile, U.N. Doc.

CEDAW/C/CHI/CO/4, 2006, para. 19.

73 See for example CEDAW Committee’s Concluding Observations to Belize, U.N. Doc.

A/54/38, 1999, para. 56, Chile, U.N. Doc. A/54/38, 1999, para 228, Colombia, U.N. Doc.

A/54/38, 1999, para. 393.

74 See for example CEDAW Committee’s Concluding Observations to; Burkina Faso, U.N. Doc.

A/55/38, 2000, para. 276, Ireland, U.N. Doc. A/54/38, 1999, para. 186.

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4.2.2 The right to family planning

As noted by the ICPD document from the conference in Cairo 1994, access to abortion should not be seen as a part of the right to family planning. This chapter will elaborate further on whether abortion can be seen as a part of the right to family planning in relation to the CEDAW Convention.

There is no universal definition of family planning. The term can be found in several articles in CEDAW, where different formulations are used. Article 16(1)(e) defines family planning as:

“the same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to ena- ble them to exercise these rights”

In its General Recommendation No. 21, CEDAW has interpreted the provisions in the Convention. In regard to Article 16(1)(e), the Committee underlines the importance of women having the right to freely decide on whether to have children or not. This choice should never be limited by the partner, parents or the government. The recommendation focuses on the reproductive choice that every woman should be entitled to. It does not, however, mention anything about the possible right to terminate a pregnancy. It only recognises abortion as a measure that can have serious consequences for women.⁷⁵ In the General Recommenda- tion No. 24, member states are recommended to use family planning as a way to prevent unwanted pregnancies.⁷⁶

4.2.3 Abortion as a part of the right to family planning?

There is an ongoing debate about whether abortion is included, or should be included, in the term family planning. If abortion is included in the definition, then access to it is protected by CEDAW and therefore by public international law. In order to assess whether abortion could be included in the definition of family planning, the preparatory works of CEDAW can be analysed to find the ordinary meaning of the definition. The preparatory works shows that the term

“family planning services” was controversial in the negotiations in regard to Ar- ticle 10(h) CEDAW, which obligates states to give information and advice of family planning.⁷⁷ Article 16(1)(e), the right to Family Planning, was adopted by consensus, indicating that the term family planning was generally accepted by the countries. This would not have been the case if abortion was included in the

75 CEDAW, CEDAW General Recommendation No. 21: Equality in Marriage and Family Relations, 1994, para. 21 and 22.

76CEDAW, CEDAW General Recommendation No. 24: Article 12 of the Convention (Women and Health), 1999, A/54/38/Rev.1, 1999, para. 23.

77CEDAW,Commission on the Status of Women, resumed 26th session : summary record of the 667th meet- ing, held at the Palais des Nations, Geneva, E/CN.6/SR.642, 1976, para. 44.

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definition, since countries in opposition of abortion didn’t have issues accepting the term of family planning.⁷⁸

Another possibility under CEDAW is to argue protection for the access to abortion under Article 12. According to Article 12(1), member states are obliged to eliminate discrimination in health care, where family planning is included. Ac- cording to 12(2), member states should grant appropriate services in connection with pregnancy. Could abortion be included in the definition of “services in connection with pregnancies”? Once again, it’s a question of interpretation since abortion is not explicitly mentioned by the Convention. There are examples of scholars arguing that all matters which affect the control over a woman’s body should be included in the definition, such as abortion and sterilisation services.⁷⁹ The possibility to terminate a pregnancy in a safe and legal way should be seen as an element of the right to family planning as well as the right to health. Ac- cording to Dixon-Mueller, abortion falls “clearly and logically under the rubrics of the right to family planning”⁸⁰ Maja Kirolova Eriksson, on the other hand, concludes that there is insufficient evidence for the abortion being included in the right to family planning. Kirolova Eriksson holds that there are very few documents where the definition of family planning has been given a wide interpretation. According to her, a right to terminate a pregnancy cannot be found in the international human rights law in relation to the right to family planning.⁸¹

It’s clear that abortion is not mentioned as a part of the right to family planning in any of the recommendations made by CEDAW. Still, women are entitled to decide if, when and how many children they want. In practice, the choice to terminate a pregnancy could be seen as a way to fulfil this right, since the right to family planning focuses on the choice of the woman. This interpretation of the provision could not, however, be found in any of the sources relating to the CEDAW Convention. According to Article 31 of the Vienna Convention on the Law of Treaties, a treaty should be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.⁸² The purpose of the CEDAW Convention is to eliminate discrimination of women and to promote equality between men and women, as stated in the preamble to the Convention.⁸³ The preamble also brings up “faith in fundamental human rights, in the dignity and worth of the human person”. As brought up by Maja Kirolova Eriksson, human dignity is

78 See the conclusions draw by Malmsköld, Elin, The status of abortion in public international law and its effect on domestic legislation, Master’s Thesis in Public International Law and Human Rights, Uppsala University, 2018, p. 26, < http://www.diva por-

tal.org/smash/get/diva2:1231728/FULLTEXT01.pdf>, checked 20 May 2020.

79 See for example Elder, Betty G., The Rights of Women; Their Status in International Law, Crime and Social Justice 1986, vol. 25, p. 20-21.

80 Dixon-Mueller, Ruth, Population Policy and Women’s Rights, Transforming Reproductive Choice, Praeger Publishers Inc, London, 1993, p. 110 and 164.

82 United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331.

83 CEDAW, preamble para. 3.

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closely linked with having control over reproduction. A wide interpretation of

“family planning” where access to safe and legal abortion is included would be needed, if the object and purpose test were applied to the provision. The teleo- logical method gives room for a dynamic approach to human rights, where the conditions and developments of today should be considered when interpreting the provisions.⁸⁴ A human rights treaty can however not be interpreted too ex- tensively. It’s not possible to include a new right through interpretation which was not intended to be included in the original meaning of the document.⁸⁵

4.2.4 Restrictive abortion laws as a violation of CEDAW

On another note, restrictive abortion laws can be in violation of the CEDAW Convention. The case of L.C v. Peru was the first decision by the CEDAW Com- mittee regarding abortion.⁸⁶ An 11-year old girl was raped by a man and became pregnant. The girl tried to commit suicide but survived. As a result, the girl re- ceived very serious injuries which required emergency health care. The hospital refused to perform the surgery, because of the risk of affecting the pregnancy.

Rape was not a legal basis for abortion in Peru. The girl had a miscarriage, and more than three months after the accident she finally got the surgery needed. As a result of the refusal by the hospital, the girl’s body was completely paralysed.

CEDAW concluded that by denying access to effective health services, Peru violated the girl’s right to non-discriminative health care. The right to equal legal protection in Article (2)(c) and the obligation for states to modify laws which constitutes discrimination against women in Article (2)(f) were considered violated. Furthermore, Article 3 and the right to enjoy human rights on a basis of equality with men were violated. Article 5 was also violated, where states are obliged to take appropriate measures to modify cultural patterns and stereotyped roles for women. Lastly, Article 12 and the right to access health care without discrimination was violated.⁸⁷ The most ground-breaking aspect of the case is the fact that the committee called upon the state of Peru to liberalise their abortion laws and decriminalise abortion in cases of rape and sexual assault.⁸⁸ This case shows that a restrictive abortion law can violate several rights guaranteed by the Convention. It’s worth noting that CEDAW only considered access to abortion in a situation of rape and sexual assault in this case. Access to abortion on request was not addressed, and it’s therefore not possible to infer any general right to access safe and legal abortion from this case.

85 Harris, David John, Warbrick, Colin, O'Boyle, Michael, The Law of the European Convention on Human Rights, London, Butterworths, London, 1995, p. 8.

86 LC v Peru, UN Committee on the Elimination of Discrimination of Women, CEDAW/C/50/D/22/2009, 2011.

87 Ibid, para. 9.

88 Ibid, para. 12(b)(iii).

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4.2.5 Concluding remarks

From reading the preparatory works, the Convention, the General Recommen- dations and relevant doctrine on the subject, the answer seems quite clear. The right to family planning should be seen as a right to prevent pregnancies, rather than terminate already existing pregnancies. Abortion is not included in the def- inition of family planning. Hence, there is no de lege lata right to access safe and legal abortions according to CEDAW.

The CEDAW committee is however an important actor for the protection of women’s access to safe and legal abortions. The case of LC v Peru is an important example of how restrictive abortion laws can in fact be violating the rights guaranteed by CEDAW, even if the Convention does not establish a positive right for the access to safe and legal abortion. CEDAW is furthermore an important instrument for addressing the issue of access to safe and legal abortion from a perspective of equality and discrimination. By arguing that access to safe and legal abortion should be seen as a form of health care that women are entitled to without discrimination, it would be possible to include protection of safe and legal abortion under this perspective. In a wider perspective, the CEDAW Con- vention addresses equality between women and men as necessary in order for everyone to enjoy the same level of protection for human rights. The signatory states are obliged to end discrimination against women. It would be possible by arguing that access to safe and legal abortion is a question of equality, to therefore argue for a protection for access to safe and legal abortion to be included in the state obligations. This issue will be discussed more thoroughly further on in the thesis.

4.3 Abortion and the right to health

As previously mentioned under the CEDAW section, restrictions on medical procedures can discriminate and interfere with women’s access to health. The right to health, or “The right to the enjoyment of the highest attainable standard of physical and mental health” by its full name, is considered to be a fundamental human right. It was first recognised in the 1946 Constitution of the World Health Organization (WHO).⁸⁹ In relation to abortion, it’s been argued that the right to health should require states to take measures preventing women from obtaining unsafe abortions risking their health. The right to health should be seen as a broad concept, where mental health is included. Thus, it’s been argued that the right to access abortion for socio-economic reasons or on request should be included in the international protection since a denial of an abortion can affect both the physical and the mental health of the woman.⁹⁰

89 UN General Assembly, Entry into force of the constitution of the World Health Organization, A/RES/131, 1947.

90 Zampas and Gher, 2008, p. 269.